Andrew L. Urban
Remember that famous video from February 2025 where a male and a female nurse in a Bankstown hospital made threats and claims about how badly they did and will treat Jewish patients in their care? That video of Sarah Abu Lebdeh and Ahmed Rashad Nadir in an online chat with an Israeli man, triggered an investigation which led to charges which are now before the court – but the judge won’t allow it into evidence.
District Court Judge Michael Goffett McHugh SC hasn’t helped matters by withholding his reasons for the decision, nor why they are suppressed, but the short section released states that it has to do with the video having been improperly acquired. Pardon my curiosity but if that prevents the video being admitted as evidence, why is it legally allowed to be the basis of charges?
Abu Lebdeh has pleaded not guilty to a) threatening violence to a group and b) using a carriage service to menace, harass or offend. Ahmed Rashad Nadir has pleaded not guilty to a) using a carriage service to menace, harass or offend and b) Possessing a prohibited drug (reported as morphine). The charges are based on the alleged conduct and statements made during the online interaction. Penalties for such offences range from a maximum of 5 to 7 years in jail.
The prosecution may need to rely on other evidence, principally the testimony of the Israeli influencer who participated in the online conversation. The trial is listed to commence on 31 August 2026.
As vice-president of the Rule of Law Institute of Australia, Chris Merritt, The Australian’s legal affairs correspondent points out, “The judge might have good cause for suppressing his chain of reasoning. But at face value the material made public on Tuesday is unsatisfactory. This decision turned on judicial discretion.
“We know the decision was all about judicial discretion because the judge said it concerned section 138 of the Commonwealth Evidence Act. And the heading on that statute says: “Discretion to exclude improperly or illegally obtained evidence.”
“The statute has two steps before evidence can be excluded. The first required a decision as to whether the video was, in fact, improperly or illegally obtained. That would require the judge to decide that a video made in Israel is considered to have been “obtained” illegally under Australian law, or “in consequence of an impropriety”.
“That could mean that the judge has determined that Australia’s law or standards of propriety can be used as a benchmark to assess the conduct of citizens of Israel. But for the sake of the argument, let’s simply accept that the video was obtained illegally or as a result of impropriety. That brings us to the real issue. Section 138 also says illegally obtained evidence can be still be used if “the desirability of admitting the evidence outweighs undesirability of admitting the evidence”.
“So even if the video was obtained in the most dreadful of circumstances, the statute makes it clear that it could still have been used (emphasis added) as evidence against the two former nurses. Until the judge decides to share his chain of reasoning with the public, his logic for excising his discretion to exclude the video remains a mystery.” This case is far from over, as Merritt says.
It would be highly cynical to suggest that the judge has designed his initial judgement and its secrecy for reasons not entirely based on the requirements of the law.
But …. don’t we all love a good mystery? At least in fiction…